Q Publishing Group, Ltd. v. Outfront Media Inc.

Filing 34

Stipulation and PROTECTIVE ORDER signed by Judge John L. Kane on 07/10/15. (jhawk, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO

Civil Action No. 15-cv-00311-JLK
Q PUBLISHING GROUP, LTD.,
a Colorado limited liability company,
Plaintiff,
v.
OUTFRONT MEDIA INC.,
a Maryland corporation and real estate investment trust,
Defendant.
STIPULATION AND PROTECTIVE ORDER
Kane, J.
Each Party and each Counsel of Record stipulate and move the Court for a
Protective Order pursuant to Rule 26(c) of the Federal Rules of Civil Procedure
concerning the treatment of Confidential Information (as hereinafter defined), and, as
grounds therefor, state as follows:
1.

In this action, at least one of the Parties has sought and/or is seeking

Confidential Information (as defined in paragraph 2 below). The Parties also anticipate
seeking additional Confidential Information during discovery and that there will be
questioning concerning Confidential Information in the course of depositions. The Parties
assert the disclosure of such information outside the scope of this litigation could result in
significant injury to one or more of the Parties’ business or privacy interests. The Parties

have entered into this Stipulation and request the Court enter the within Protective Order
for the purpose of preventing the disclosure and use of Confidential Information except
as set forth herein.
2.

“Confidential Information” means any document, file, portions of files,

transcribed testimony, or response to a discovery request, including any extract, abstract,
chart, summary, note, or copy made therefrom - not made available to the public - and
designated by one of the Parties in the manner provided in paragraph 3 below as
containing confidential business information, including trade secrets.
3.

Where Confidential Information is produced, provided or otherwise

disclosed by a Party, including but not limited to in response to any discovery request, it
will be designated in the following manner:
a. By imprinting the word “Confidential” on the first page or cover of any
document produced;
b. By imprinting the word “Confidential” next to or above any response to
a discovery request; and
c. With respect to transcribed testimony, by giving written notice to
opposing counsel designating such portions as “Confidential” no later
than ten calendar days after receipt of the transcribed testimony.

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4.

All Confidential Information provided by a Party, including but not limited

to in response to a discovery request or transcribed testimony, shall be subject to the
following restrictions:
a. It shall be used only for the purpose of this litigation and not for any
business or other purpose whatsoever;
b. It shall not be communicated or disclosed by any Party’s counsel or a
Party in any manner, either directly or indirectly, to anyone except for
purposes of this case and unless an affidavit in the form of Exhibit A
has been signed and to whom disclosure is reasonably necessary for this
litigation.
5.

Individuals authorized to review Confidential Information pursuant to this

Protective Order shall hold Confidential Information in confidence and shall not divulge
the Confidential Information, either verbally or in writing, to any other person, entity or
government agency unless authorized to do so by court order.
6.

The Party’s counsel who discloses any of Plaintiff’s, Defendant’s or a non-

party’s Confidential Information as authorized hereunder shall be responsible for assuring
compliance with the terms of this Protective Order with respect to persons to whom such
Confidential Information is disclosed and shall obtain and retain the original affidavits
signed by qualified recipients of Confidential Information, and shall maintain a list of all
persons to whom any Confidential Information is disclosed.
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7.

During the pendency of this action, opposing counsel may upon court order

or agreement of the parties inspect the list maintained by counsel pursuant to paragraph 6
above upon a showing of substantial need in order to establish the source of an
unauthorized disclosure of Confidential Information and that opposing counsel are unable
otherwise to identify the source of the disclosure. If counsel disagrees with opposing
counsel’s showing of substantial need, then counsel may seek a court order requiring
inspection under terms and conditions deemed appropriate by the Court.
8.

No copies of Confidential Information shall be made except by or on behalf

of counsel in this litigation and such copies shall be made and used solely for purposes of
this litigation.
9.

During the pendency of this litigation, counsel shall retain custody of

Confidential Information, and copies made therefrom pursuant to paragraph 8 above.
10.

If opposing counsel objects to the designation of certain information as

Confidential Information, he or she shall promptly inform the other parties’ counsel in
writing of the specific grounds of objection to the designation. All counsel shall then, in
good faith and on an informal basis, attempt to resolve such dispute. If after such good
faith attempt, all counsel are unable to resolve their dispute, opposing counsel may move
for a disclosure order consistent with this order. Any motion for disclosure shall be filed
within 14 days of receipt by counsel of notice of opposing counsel's objection, and the

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information shall continue to have Confidential Information status from the time it is
produced until the ruling by the Court on the motion.
11.

If timely corrected, an inadvertent failure to designate as “Confidential

Information” qualified information or items does not, standing alone, waive the Party’s
right to secure protection under this Order for such material. Upon timely correction of a
designation, the receiving Party must make reasonable efforts to assure that the material
is treated in accordance with the provisions of this Order.
12.

If a receiving Party learns that, by inadvertence or otherwise, it has

disclosed Confidential Information to any person or in any circumstance not authorized
under this Stipulation and Protective Order, the receiving Party must immediately (a)
notify in writing the designating Party of the unauthorized disclosures, (b) use its best
efforts to retrieve all unauthorized copies of the confidential material, (c) inform the
person or persons to whom unauthorized disclosures were made of all the terms of this
Order, and (d) request such person or persons to execute the affidavit that is attached
hereto as Exhibit A.
13.

When a producing Party gives notice to a receiving Party that certain

inadvertently produced material is subject to a claim of privilege or other protection, the
obligations of the receiving Parties are those set forth in Federal Rule of Civil Procedure
26(b)(5)(B). Pursuant to Federal Rule of Evidence 502(d) and (e), the inadvertent
production of a privileged or work product protected document is not a waiver in the
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pending case or in any other federal or state proceeding. For example, the mere
inadvertent production of privileged or work product protected documents in this case as
part of a mass production is not itself a waiver in this case or in any other federal or state
proceeding.
14.

The terms of this Order are applicable to information produced by a non-

party in this action and designated as Confidential Information or Highly Confidential
Information. Such information produced by non-parties in connection with this litigation
is protected by the remedies and relief provided by this Order. Nothing in these
provisions should be construed as prohibiting a non-party from seeking additional
protections. In the event that a Party is required, by a valid discovery request, to produce
a non-party’s confidential information in its possession, and the Party is subject to an
agreement with the non-party not to produce the non-party’s confidential information,
then the Party shall: (a) promptly notify in writing the requesting Party and the non-party
that some or all of the information requested is subject to a confidentiality agreement
with a non-party; (b) promptly provide the non-party with a copy of the Stipulation and
Protective Order in this litigation, the relevant discovery request(s), and a reasonably
specific description of the information requested; and (c) make the information requested
available for inspection by the non-party. If the non-party fails to object or seek a
protective order from this court within 14 days of receiving the notice and accompanying
information, the receiving Party may produce the non-party’s confidential information
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responsive to the discovery request. If the non-party timely seeks a protective order, the
receiving Party shall not produce any information in its possession or control that is
subject to the confidentiality agreement with the non-party before a determination by the
court. Absent a court order to the contrary, the non-party shall bear the burden and
expense of seeking protection in this court of its confidential information.
15.

If a Party is served with a subpoena or a court order issued in other

litigation that compels disclosure of any information or items designated in this action as
Confidential Information or Highly Confidential Information that Party must: (a)
promptly notify in writing the designating Party. Such notification shall include a copy
of the subpoena or court order; (b) promptly notify in writing the party who caused the
subpoena or order to issue in the other litigation that some or all of the material covered
by the subpoena or order is subject to this Protective Order. Such notification shall
include a copy of this Stipulation and Protective Order; and (c) cooperate with respect to
all reasonable procedures sought to be pursued by the designating Party whose
confidential material may be affected. The purpose of imposing these duties is to alert
the interested parties to the existence of this Protective Order and to afford the
designating Party in this case an opportunity to try to protect its confidentiality interests
in the court from which the subpoena or order issued. If the designating Party timely
seeks a protective order, the Party served with the subpoena or court order shall not
produce any information designated in this action as Confidential before a determination
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by the court from which the subpoena or order issued, unless the Party has obtained the
designating Party’s permission. The designating Party shall bear the burden and expense
of seeking protection in that court of its confidential material – and nothing in these
provisions should be construed as authorizing or encouraging a receiving Party in this
action to disobey a lawful directive from another court.
16.

Use of Confidential Information in Court Proceedings: In the event

Confidential Information is used in any court filing or proceeding in this action, including
but not limited to its use at trial, it shall not lose its confidential status as between the
parties through such use. Confidential Information and pleadings or briefs quoting or
discussing Confidential Information will not be accepted for filing “under seal” or
otherwise kept out of the public record in this action, however, except by court order
issued upon motion of the party seeking to file the documents under seal. Any motion
requesting leave to file documents under seal shall comply with the requirements of
D.C.COLO.LCivR 7.2 and demonstrate that the Confidential Information at issue is
entitled to protection under the standards articulated in Nixon v. Warner
Communications, Inc., 435 U.S. 589, 598-602 (1978) (applied in United States v. Hickey,
767 F.2d 705, 708 (10th Cir. 1985) and Crystal Grower’s Corp. v. Dobbins, 616 F.2d
458, 461 (10th Cir. 1980)).
17.

The termination of this action shall not relieve counsel or other persons

obligated hereunder from their responsibility to maintain the confidentiality of
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Confidential Information pursuant to this Protective Order, and the Court shall retain
continuing jurisdiction to enforce the terms of this Protective Order.
18.

By agreeing to the entry of this Protective Order, the Parties adopt no

position as to the authenticity or admissibility of documents produced subject to it.
19.

Upon termination of this litigation, including any appeals, each Party’s

counsel shall immediately return to the producing party all Confidential Information
provided subject to this Protective Order, and all extracts, abstracts, charts, summaries,
notes or copies made therefrom, or immediately destroy all Confidential Information and
promptly provide written certification to the producing party of such destruction. At that
time, counsel shall also file under seal with this Court the list of individuals who have
received Confidential Information which counsel shall have maintained pursuant to
paragraph 6 herein, and counsel shall provide the Court with verification that any of
counsel's work product referencing Confidential Information has been destroyed.
20.

Nothing in this Protective Order shall preclude any Party from filing a

motion seeking further or different protection from the Court under Rule 26(c) of the
Federal Rules of Civil Procedure, or from filing a motion with respect to the manner in
which Confidential Information shall be treated at trial.

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Dated: July 10, 2015

s/ John L. Kane
Senior U.S. District Judge

STIPULATED AND AGREED TO:

By: s/ Robert R. Brunelli
Robert R. Brunelli
[e-mail]
Antonio G. Vann
[e-mail]
SHERIDAN ROSS P.C.
1560 Broadway, Suite 1200
Denver, Colorado 80202
Telephone: [phone]
Facsimile: 303 863 0223
Email: [e-mail]
ATTORNEYS FOR PLAINTIFF

KILPATRICK TOWNSEND &
STOCKTON LLP
By: s/ Brian P. O’Donnell
Brian P. O’Donnell (#46802)
1400 Wewatta Street, Suite 600
Denver, CO 80202
Telephone: [phone]
Facsimile: [phone]
[e-mail]
Dennis Wilson
9720 Wilshire Blvd., PH
Beverly Hills, CA 90212
Telephone: [phone]
Facsimile: [phone]
[e-mail]
Christopher Varas
1420 Fifth Ave, Suite 4400
Seattle, WA 98101
Telephone: [phone]
Facsimile: [phone]
[e-mail]
Attorneys for Defendant

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EXHIBIT A
AFFIDAVIT
STATE OF COLORADO )
)
COUNTY OF
)

ss.

, swears or affirms and states under penalty of perjury:
I have read the Protective Order in Q Publishing Group, LTD v. Outfront
Media Inc., Civil Action No. 15-cv-00311-JLK, a copy of which is attached to this
Affidavit.
1.

I have been informed by __________________, Esq., counsel for
_________________, that the materials described in the list attached to this Affidavit are
Confidential Information as defined in the Protective Order.
2.

I promise that I have not and will not divulge, or undertake to divulge to
any person or recording device any Confidential Information shown or told to me except
as authorized in the Protective Order. I will not use the Confidential Information for any
purpose other than this litigation.
3.

4.
For the purposes of enforcing the terms of the Protective Order, I hereby
submit myself to the jurisdiction of the court in the civil action referenced above.
5.

I will abide by the terms of the Protective Order.

(Signature)

(Print or Type Name)
Address:

Telephone No.: (___)
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SUBSCRIBED AND SWORN to before me this ________ day of ___________,
20___, by

.

WITNESS my hand and official seal.

Notary Public
[S E A L]
My Commission Expires:

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